Legal expert: Alex Hunter may have been legally obligated to sign indictment

John Ramsey looks on as his wife, Patsy, holds an advertisement promising a reward for information leading to the arrest and conviction of the killer of their 6-year-old daughter, JonBenet, during an interview with reporters on May 1, 1997, in Boulder. Thirteen years after the conclusion of the grand jury investigation into JonBenet s death, sources have confirmed to the Daily Camera that the jurors voted to indict the Ramseys on charges of child abuse resulting in death but then-District Attorney Alex Hunter refused to prosecute the case. (Camera file photo)

On a brilliantly clear autumn day more than 13 years ago, Boulder District Attorney Alex Hunter stepped to the podium before an anxious media horde to announce that the grand jury investigation into the death of JonBenet Ramsey had come to an end.

"I and my prosecution task force believe we do not have sufficient evidence to warrant a filing of charges against anyone who has been investigated at this time," Hunter told the reporters assembled outside the Boulder County Justice Center on Oct. 13, 1999.

Yet multiple sources, including members of the grand jury, have now confirmed to the Daily Camera what Hunter did not say that day: The grand jury voted to indict both John and Patsy Ramsey on charges of child abuse resulting in death in connection with the events of Christmas night 1996 -- but Hunter refused to sign the indictment, believing he could not prove the case beyond a reasonable doubt.

Camera file photo

The Daily Camera has confirmed that the grand jury investigating the death of JonBenet Ramsey voted to indict John and Patsy Ramsey on charges of child abuse resulting in death but then-District Attorney Alex Hunter refused to sign the indictment and prosecute the case.

One legal expert, however, believes Colorado law may have obligated Hunter to at least sign the indictment, even if he elected not to prosecute the case.

"We didn't know who did what," one juror told the Camera, "but we felt the adults in the house may have done something that they certainly could have prevented, or they could have helped her, and they didn't."

Boulder attorney Bryan Morgan, who represented John Ramsey through the conclusion of the grand jury process, said Saturday, "If what you report actually happened, then there were some very professional and brave people in Alex's office and perhaps elsewhere whose discipline and training prevented a gross miscarriage of justice."

Former Boulder First Assistant District Attorney Bill Wise was among those confirming the jury's vote.

"It names both of them, John and Patsy Ramsey," said Wise, who was Hunter's top assistant for 28 years but did not participate in the grand jury process.

Child abuse resulting in death, when charged as "knowingly or recklessly," is a Class II felony that carries a potential sentence of four to 48 years in prison. The statute of limitations on that charge in Colorado is three years from the date of the crime.

In an email, University of Colorado Law School professor Mimi Wesson, who has followed the Ramsey case over the years, wrote, "The Colorado statute governing grand jury practice says ... that '(e)very indictment shall be signed' by the foreman of the grand jury and the prosecuting attorney."

In the event that the grand jury voted to indict on charges that Hunter did not believe he could prove at trial, Wesson said it is her opinion that proper legal procedure would have been to sign the document, file it with the court and then move in open court to dismiss the charges.

"That would be the more transparent and responsible course, in my opinion," Wesson wrote.

Hunter, who left office in 2001 after 28 years as Boulder County's district attorney, declined to discuss the grand jury's actions, but he did issue the following statement last week via email:

"Colorado statutes, the ethical canons which govern the practice of law, and the Boulder District Court's oaths, instructions and orders in the JonBenet Ramsey grand jury proceedings, are well established and absolutely clear with respect to the various participants' legal obligations, duties and responsibilities, including the inviolate secrecy of the proceedings and the differing burdens of proof applicable to jurors and prosecutors.

"As the duly elected district attorney at the time and as an officer of the court then and now, I must respectfully decline further comment."

Boulder police Chief Mark Beckner also would not discuss the Ramsey grand jury.

"I'm sworn in, and I can't say anything about the grand jury," Beckner said. "I would be violating my oath of secrecy and I can't do that."

Denver criminal defense lawyer and legal analyst Dan Recht pointed out that the standard of proof for a grand jury to indict, which is probable cause, is a far lower threshold than what Hunter would have had to meet at trial.

"It couldn't be more different in a jury trial," Recht added. "So what Alex Hunter was thinking about was, 'But can I prove this beyond a reasonable doubt?' Because that's the burden that the prosecution has at a trial. So he seemingly decided, 'I am not going to be able to prove this child abuse resulting in death beyond a reasonable doubt to a jury.'"

Members of the grand jury that investigated the JonBenet Ramsey case are seen leaving the Boulder County Justice Center on Oct. 13, 1999, the day the panel finished its work and then-District Attorney Alex Hunter announced no charges would be filed. (Camera file photo)

'Somebody did something pretty horrible'

Jurors confirming the vote to the Camera -- who agreed to talk only on the condition of anonymity -- nevertheless acknowledged continuing uncertainty about what really went on in the middle of the night in the house at what was then known as 755 15th St., and is now 749 15th St.

"I'm not saying that I am at peace. But I had sympathy with his (Hunter's) decision. I could see the problem that he was in. I could understand what he was doing."

The Ramseys and their now-adult son Burke were exonerated in the case in July 2008 by then-District Attorney Mary Lacy, based on updated analysis of DNA samples from JonBenet's clothing -- although numerous prosecutors labeled her doing so as both unusual and questionable.

Former Ramsey attorney Morgan, however, said, "In the intervening years, the techniques for retrieving and testing DNA improved to the point where it conclusively demonstrated the Ramseys' innocence. "

Still, one juror who spoke with the Camera expressed a feeling of still not being completely reconciled with Hunter's decision. But the juror added that, perceiving that it would be a difficult case to try, Hunter's declining to sign the indictment, also known as a true bill, was understandable.

And, the juror said, "I think I did believe that they would get more evidence and figure out who did it."

Another grand juror who confirmed the vote said, "I think I have conquered the feeling of any acute frustration.

"This is what we thought, and that's what you (the prosecutors) asked us for, and that's what we gave you, our opinion," the juror added. "That was our job, and the rest of the legal procedure, they just do with it what has to be done."

Several grand jurors declined to comment on their vote. One, in doing so, said, "Our job was to try to come up with, to help solve, this crime.

"It has not been solved yet, and we are still under oath to keep silent and I would like to honor that. And I still have all the hope that, in the coming years, this crime will be solved properly."

'Not enough evidence to file'

Because under Colorado law grand jury proceedings are secret, and those participating in the process are sworn to uphold that secrecy, few directly involved would discuss the case on the record. Several agreed to talk, although not all did so for attribution.

Wise did not participate directly in the grand jury proceedings. But he learned of the results after its conclusion, and he defends Hunter's decision not to press forward with a prosecution.

"I absolutely do" believe Hunter made the right decision, said Wise, who is now retired. "And I thought it was a pretty courageous decision, because I know about the public pressure that was being put on everybody who was involved -- but particularly the elected district attorney."

Bob Grant at that time was the district attorney for neighboring Adams County. Grant was among a small group of local prosecutors with whom Hunter met monthly. He used those colleagues as advisers throughout the case, which drew rapt attention from an international audience, spawned more than a dozen books and a television movie, and has ultimately proved to be one of the nation's most enduring criminal mysteries.

"It is a case that has stuck with me for decades now because no one has been held accountable for the murder of a young child," Grant said in a recent interview.

Grant would not confirm or deny the grand jury's actions, citing the secrecy rules.

However, Grant said, "Had there been a question of whether to sign a document or not, I would have been among those advising not to indict, because I did not believe there was a winnable case based on the evidence at that time."

Wise said that those advising Hunter were not all of one mind when the decision was made.

"I would say there was not unanimity, or a unanimous decision, by anyone," Wise said. "I know of at least one, and possibly two (prosecutors), who felt it should have been filed, period, end of discussion. And I know of at least two, if not more than two, probably four, that thought there was not enough evidence to file."

Then-District Attorney Alex Hunter, second from right, and his prosecution team - including, from right to left, Michael Kane, Mitch Morrissey, Bill Wise and Bruce Levin - tour the property of the Ramseys' 15th Street home in Boulder with members of the grand jury. (Camera file photo)

Juror: Process was 'traumatic'

The grand jury process is predicated on a veil of secrecy such that Hunter, in his news conference at its conclusion, said, "Under no circumstances will I or any of my advisers, prosecutors, the law enforcement officers working on this case or the grand jurors discuss grand jury proceedings today or ever, unless ordered by the court."

The grand jurors who have nevertheless now spoken about their Ramsey experience take pride in their service to the judicial system.

"I actually believe that I did a good job with being able to pay attention to the actual evidence that was said," one juror said of the grand jury experience. "I didn't go in there with my mind made up, one way or the other."

That juror talked about being bothered by seeing a disparity between what was presented as evidence and what was being reported outside the courthouse by insatiable media.

Jurors even in routine cases are typically cautioned to avoid media coverage, and the juror said that was the case for the Ramsey grand jury -- but only at first.

"At the beginning, they said, 'Don't look at the media.' But this was a year-and-a-half we were doing this, so some time not long after the beginning, they said, 'We really can't ask you not to look at the media. There is too much stuff going on.'"

And so, the juror said, "The instructions sort of changed to, 'What you need to pay attention to is what's said in this room. You've already seen how much out there is not true. Pay attention to what is said inside this room because this is evidence we can back up. And things that are said outside aren't that way.' They expected us to be grownups about it, if you will."

While speculation was rampant outside the Boulder County Justice Center about what might be going on in the grand jury room, for the eight women and four men deciding the case, the work was both sobering and draining.

"It was pretty traumatic," a juror said. "It was a horrible event, and to really have to delve into all of the evidence and know what happened and get details was difficult.

"The reality is it was a horrible thing, and I didn't have the luxury of picking and choosing what I would pay attention to. I needed to know what happened in every detail, so it was difficult. So many people had been traumatized by this, and hurt, and scared."

Another juror commented on fears that family members might "disown" the juror over that juror's refusal to discuss the ongoing work with relatives.

But that juror was honored to be part of the process.

"I thought, and believe, that they were presenting all of the relevant information we needed to make a decision like that, and that's all we did," said the juror.

As for Hunter's decision not to go forward with a prosecution, the juror said, "That's the way it goes. I don't have any thoughts on what should or should not have been done.

"That's why we, the people, put him there. Alex Hunter was, and is, a very, very intelligent person. It was interesting, and rewarding, being part of the legal justice system."

Wise, Hunter's former top assistant, defended the ultimate decision not to press forward, in part because prosecution would have been difficult with two defendants.

"When you have a true bill that says two people were involved, but it doesn't say what the involvement of the people was, all a good defense attorney has to do is to separate their trials ... and, all of a sudden, you've got nothing," Wise said.

"You're operating under the theory that two people might have been responsible for the death ... and when you separate them, you don't know which of the two people was responsible for what. And so I thought it was the right decision."

More recently, Boulder prosecutors were successful in prosecuting a high-profile child abuse resulting in death case; Alex and Molly Midyette, of Louisville, were indicted by a grand jury and tried in the death of their infant son Jason, who died in 2006. Both were convicted, although Alex Midyette was found guilty of the lesser charge of "criminally negligent" child abuse, which is a Class III felony.

Wise acknowledged that in Hunter's time in office, felony trials were not routinely pursued, and rarely did one go forward if the evidence was shaky.

"Absolutely," Wise said. "That is the way we operated in that office for years and years and years.

"We never steamrolled ahead on a case that has less than adequate evidence, to at least have a feeling that you can get a conviction. If that feeling didn't exist, we didn't file the case. We never steamrolled a case."

Then-Boulder County District Attorney Alex Hunter and his prosecution team announce the end of the JonBenet Ramsey grand jury investigation on Oct. 13, 1999, in the parking lot of the Boulder County Justice Center. (Camera file photo)

Ramsey case forever unresolved?

With Lacy's exoneration of the Ramseys and their son, Burke, in 2008, and the news now that a grand jury in 1999 determined that both parents should face charges, plus the false arrest in 2006 of a confessed intruder suspect, John Mark Karr, and death that same year of Patsy Ramsey, a key witness no matter who the defendant, a case that has seemed star-crossed from the first day might appear farther than ever from seeing a firm resolution.

Current Boulder District Attorney Stan Garnett, upon taking office for his first term in January 2009, announced he was returning the Ramsey case -- which Lacy had taken over from the police department -- back to the police. And it is with the Boulder Police Department that the Ramsey case now resides.

"The Boulder police are in charge of the investigation, and if the state of the evidence changes to where charges can be filed consistent with Colorado ethical standards for prosecution, I will do so and will say whatever I have to say about this case on the record and in open court," Garnett said recently. "I will have no comment otherwise about the state of the evidence."

Referring to Lacy's exoneration of the Ramseys, Garnett said, "As I have said before, the exoneration speaks for itself. But all that matters to me as district attorney is the evidence, and where it leads. We'll follow the evidence wherever it leads us."

Wise and Grant both question the validity of Lacy's exoneration, and they say Garnett -- and his successors -- are not bound by it.

"It's more inappropriate than anything else," Grant said. "It's not a prosecutorial duty to exonerate people. It's a prosecutorial duty to seek justice and to prosecute the bad guys. If you don't have a bad guy to prosecute, don't exonerate people who are at least peripherally under suspicion. I didn't think it was appropriate at all."

Many observers, taking note of the many problems and conflicts that have plagued the case over the years, have theorized that it could now never successfully be prosecuted, short of a confession backed by corroborating DNA evidence.

But Garnett rules nothing out.

"In my first term, we made cold case prosecution a priority," Garnett said, "and in Ryan Brackley, I have one of the best cold case prosecutors in the United States on my staff. Certainly, the Ramsey case is one of the cold cases we would take great satisfaction in solving and filing and pursuing in court."

A juror, reflecting on the grand jury experience, and Hunter's decision not to prosecute the indictment, emphasized that the entire matter has long been out of the jurors' hands.

"I believe and feel our effort was well executed, the results of which were, as they say, pro bono publico, for the public good," the juror said.

"You say, 'Our job was well done, we gave them an opinion.' What happened after that, we went through all that and you find out that the bottom line was the district attorney felt there wasn't enough evidence to proceed with any further effort in this regard.

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